Bailiffs Act 2000
Act No 5 of 2000
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BAILIFFS ACT 2000
Bailiffs Act 2000 Arrangement of Sections
Act No 5 of 2000
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BAILIFFS ACT 2000
Arrangement of Sections
Section
PART I – PRELIMINARY 5
1 Short Title ........................................................................................................5
2 Interpretation....................................................................................................5
PART II – ADMINISTRATION 6
3 Establishment of Bailiffs office .......................................................................6
4 Appointment ....................................................................................................6
5 Temporarily Appointments..............................................................................6
6 Bailiff’s Districts..............................................................................................6
PART III – DUTIES AND FUNCTIONS OF BAILIFFS 7
7 Duties and functions of Chief Bailiff...............................................................7
8 Special Seizure.................................................................................................7
9 Discharge of Undertaking ................................................................................8
10 Bailiffs’ Oath ...................................................................................................8
11 Proof of Service ...............................................................................................8
PART IV – BAILIFFS’ INTERPLEADER 8
12 Claim to goods seized ......................................................................................8
13 Bailiffs’ Interpleader........................................................................................9
14 Power of Court hearing Summons...................................................................9
15 Protection of Bailiff under Execution without Notice by third Party ..............9
16 Power to stay proceedings ...............................................................................9
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PART V – LIABILITY, OFFENCES, POWER TO ARREST 10
17 Exemption from liability ................................................................................10
18 Misconduct and Offences...............................................................................10
19 Civil Liability .................................................................................................10
20 Offences .........................................................................................................10
21 Police Officers to assist ..................................................................................10
PART VI – MISCELLANEOUS 11
22 Process to be addressed to the Registrar where Chief Bailiff is a party
or witness. ......................................................................................................11
23 Bailiffs Costs ..................................................................................................11
24 Transitional Provision ....................................................................................11
25 Priority of Executions.....................................................................................11
26 Bailiff’s Funds................................................................................................11
27 Regulations.....................................................................................................12
FORM 2............................................................................................................14
(SECTION 10) ..................................................................................................14
SCHEDULE 13
SPECIAL SEIZURE UNDER DISTRESS.........................................................13
OATH TO BE TAKEN BY BAILIFF...................................................................14
CERTIFICATE OF SERVICE ...........................................................................14
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BAILIFFS ACT 2000
Act No 5 of 2000
AN ACT TO PROVIDE FOR THE ESTABLISHMENT AND
OPERATION OF THE BAILIFFS' OFFICE
I assent,
TAUFA‘AHAU TUPOU IV,
4th August, 2000
[18th July, 2000]
BE IT ENACTED by the King and Legislative Assembly of Tonga in the Legislature
of the Kingdom as follows: —
PART I – PRELIMINARY
1 Short Title
This Act may be cited as the Bailiffs Act 2000.
2 Interpretation
In this Act, unless the context otherwise requires —
“Bailiff” means the Chief Bailiff and any other Bailiff appointed pursuant
to section 4;
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“Bailiffs' district” means a district specified under section 6;
“Court” means the Supreme Court of Tonga or any Court;
“Judgment debtor” means a person liable under a judgment or distress
warrant issued by a Court;
“Registrar” means Registrar of the Supreme Court;
“Minister” means the Minister of Justice;
“Ministry” means the Ministry of Justice;
“Secretary” means the Secretary of Justice.
PART II – ADMINISTRATION
3 Establishment of Bailiffs’ office
There is hereby established a Bailiffs' Office which shall be under the
administration of the Ministry of Justice.
4 Appointment
The Prime Minister, with the consent of Cabinet, may appoint a Chief Bailiff
and such other Bailiffs as are required for each Bailiffs' district.
5 Temporarily Appointments
In any case of necessity the Minister may in writing appoint any competent
person to assist a Bailiff in the discharge of his duties and any such person shall
have the same powers and be entitled to the same protection as the Bailiff whom
he is assisting.
6 Bailiffs’ Districts
The Kingdom shall be dividend into the following Bailiffs' districts: —
(a) Tongatapu and ‘Eua;
(b) Ha‘apai Island group;
(c) Vava‘u Island group;
(d) Niuafo‘ou; and
(e) Niuatoputapu.
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PART III – DUTIES AND FUNCTIONS OF BAILIFFS
7 Duties and functions of Chief Bailiff
(1) The Chief Bailiff shall have the following duties and functions: —
(a) to execute writs, warrants and orders of a Court.
(b) to serve summonses and other documents or process required to be
served by the Rules of any Court.
(c) to attend any Court when required to do so.
(d) to perform any other functions required by a Court, or under any
other law.
(e) to ensure the safe keeping of all copies of any document required
by the Court to be executed, served or used for any function
required by the Court.
(f) to ensure the safe keeping of all money, goods, chattels or proceeds
which are required to be in the custody of the Bailiffs in
performance of their duties and functions until disposed of as
ordered by the Court.
(2) Notwithstanding subsection (1), the Chief Bailiff may for the purposes of
this Act, allocate any of the functions specified in subsection (1) to
any Bailiff.
8 Special Seizure
(1) Where a Bailiff executing a writ of distress or distress warrant considers it
impractical to remove any item seized, he may declare that the item or
items have been specially seized and leave it in the place where it is being
kept at the time of the execution of the writ or warrant.
(2) All items specially seized under subsection (1) shall be listed in Form 1 of
the Schedule and the person at the time in possession of the item seized
shall be required to sign the undertaking on the form.
(3) If the person in possession of the item seized refused to sign the
completed form, the Bailiff shall endorse the form to that effect.
(4) Whether or not the person in possession of the item has signed the form,
he shall be bound by the terms of the undertaking and those terms shall be
explained to him by the Bailiff and a copy of the form served upon him
before the Bailiff leaves the place where the item specially seized is kept.
(5) Any person bound by the undertaking shall maintain the item seized in
proper repair and shall not dispose of it and shall allow the Bailiff
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reasonable access to inspect it or to arrange for its disposal in accordance
with the Court order under which it was seized.
(6) Any person who fails to perform any obligation under the undertaking
shall commit an offence and shall be liable on conviction to a fine not
exceeding $500 or to imprisonment not exceeding 6 months or both.
9 Discharge of Undertaking
Any person who is subject to an undertaking in relation to any item specially
seized under section 8 may apply to the Court which issued the order for his
discharge from the undertaking upon the following grounds: —
(a) another person has the rightful possession;
(b) another person is the owner thereof; and
(c) such other grounds that may be acceptable to the Court.
10 Bailiffs’ Oath
Every Bailiff shall, on his appointment and before performing any duties, take
an oath before a Magistrate which shall be as set out in Form 2 in the Schedule.
11 Proof of Service
(1) Where any summons or any other document is served by a Bailiff or any
other officer it shall be sufficient to prove service of such document if the
serving officer shall complete the Certificate of Service in Form 3 of the
Schedule.
(2) Any Bailiff or other officer who endorses a Certificate of Service with
intent to defraud any person commits an offence and shall be liable on
conviction to a fine not exceeding $500 or to imprisonment not exceeding
6 months or both.
PART IV – BAILIFFS’ INTERPLEADER
12 Claim to goods seized
Where any person claims title to any property seized by a Bailiff under an order
of any Court that person shall notify the Chief Bailiff or his office in writing
within 7 days of the seizure of the property setting out the following: —
(a) the nature of his entitlement;
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(b) a list of the items claimed; and
(c) his address, which shall be his address for service.
13 Bailiffs’ Interpleader
Upon receipt of a claim under section 12, the Chief Bailiff shall notify the
judgment creditor and the Court which issued the process. Unless the judgment
creditor admits the claim within 7 days the Court shall issue a summons to all
interested parties.
14 Power of Court hearing Summons
(1) At the hearing of the interpleader the Court may: —
(a) where all the claimants consent or a party so requests; or
(b) the facts are not disputed and the question at issue is a question
of law;
summarily determine the issue and make an order in such terms as may
be just.
(2) Where a party fails to appear, and the Court is satisfied that the party has
been properly served, the Court may, on application by a party attending,
make an order in his absence.
15 Protection of Bailiff under Execution without Notice by third Party
(1) When no claim has been made at the time of sale or disposal of any
property seized: —
(a) a bona fide purchaser of the property shall have good title to it; and;
(b) no person shall be entitled to recover against the Chief Bailiff or
any Bailiff for sale or disposal of such property unless it is shown
that the Chief Bailiff or person acting under his authority had notice
that the property did not belong to the Judgment debtor.
(2) The right of any claimant, who may prove he had such title to any
property, to any other remedy, shall not be affected.
16 Power to stay proceedings
Where there are proceedings in which there is a claim to possession of property
subject to process for distress, the Court may, on the application of any
interested party, order a stay of those proceedings until the interpleader action
has been determined.
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PART V – LIABILITY, OFFENCES, POWER TO ARREST
17 Exemption from liability
Subject to this Act, no liability attaches to a Bailiff for any act committed by him
in good faith in the performance of his duties.
18 Misconduct and Offences
A Bailiff who knowingly does anything amounting to neglect, misconduct or
breach of duty commits an offence and is liable on conviction to a fine not
exceeding $1,000 or imprisonment for a term not exceeding 12 months or both.
19 Civil Liability
Notwithstanding section 18 of this Act civil proceedings may be instituted
against a Bailiff for any refusal, neglect, wilful delay or improper conduct in the
performance of his duties.
20 Offences
(1) Any person who: —
(a) conceals any goods against which a Writ or Warrant has been
issued or makes a pretended sale or gift of those goods in order to
evade the levy of a Writ or Warrant or makes a false declaration of
the value of the goods; or;
(b) interferes with, hinders or offers any bribe or other inducement to
prevent a Bailiff in the performance of his duties in any way other
than that in subsection (2);
commits an offence and is liable on conviction to a fine not exceeding
$2000 or imprisonment for a term not exceeding 2 years or both.
(2) Any person who assaults, resists, obstructs or intimidates a Bailiff in the
performance of his duties commits an offence and is liable on conviction
to a fine not exceeding $1000 or imprisonment for a term not exceeding
12 months or both.
21 Police Officers to assist
(1) Upon request by any Bailiff a police officer shall aid and assist him in the
execution of any duty imposed under this Act.
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(2) In any Bailiffs' district where there is no Bailiff a police officer may
exercise the powers of a Bailiff under this Act.
PART VI – MISCELLANEOUS
22 Process to be addressed to the Registrar where Chief Bailiff is a
party or witness.
In any proceedings in a Court to which the Chief Bailiff is a party or a
witness —
(1) all writs and other process therein shall be addressed for service or
execution to the Registrar; and
(2) the provisions of this Act shall apply as if the Registrar were the
Chief Bailiff and the said Registrar may direct a Bailiff to serve or
execute the same.
23 Bailiffs Costs
All expenses properly and reasonably incurred by the Bailiffs' Office shall be
charged on and paid out of the matter or suit in respect of which they were
incurred before any other payments are made.
24 Transitional Provision
Nothing in this Act shall render invalid or void anything done by any Bailiff
under a court order made prior to this Act coming into force.
25 Priority of Executions
Where a writ of distress is issued against any property by the Supreme Court and
a distress warrant is issued against the same property by the Magistrates Court,
the rights to the goods seized shall be determined by the priority in time of the
application for the issue of the writ or warrant.
26 Bailiff’s Funds
(1) The Secretary shall open and maintain an interest bearing bank account,
called the Bailiffs' Fund Account for the purpose of depositing and paying
out Bailiffs' funds.
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(2) The Chief Bailiff shall ensure that all money or proceeds from the sale of
seized property are received, recorded and signed for by the Secretary.
The Secretary shall deposit those moneys into the Bailiffs' Fund Account.
(3) The Secretary shall firstly pay the costs of the Chief Bailiff as determined
under section 23.
(4) The Secretary shall then ensure that the amount directed by the Court be
paid to any person out of the money paid in to the Bailiffs' Fund Account
be paid to that person upon presentation of the relevant Court order and
any surplus returned to the Judgment debtor.
(5) The Bailiffs' Fund Account shall be subject to annual audit to be carried
out by the Auditor General.
27 Regulations
The Minister may, with the consent of Cabinet, make any regulations for
carrying out the purpose and for the administration of this Act.
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Schedule
(Section 8) - Form 1
SPECIAL SEIZURE UNDER DISTRESS
Court of issuing process: .........................................................................
Name of case: .........................................................................
Number of case: .........................................................................
Number of writ/warrant of distress: .........................................................................
I ............................................................., an authorised Bailiff, having on the ............
day of ........................................, 20.............. executed the above-named court process
at .................................................... in the presence of .................................................
who is the person at present in possession of the items listed below;
And as I consider that it is impractical at this stage to remove the items listed below;
I declare the following items to be specially seized:
Signed this ........... day of .......................... 20......... ................................................
Bailiff
Undertaking by the person at present in possession:
I ......................................................................, having been present at the time the
above-named items were specially seized, HEREBY UNDERTAKE:
1. to maintain the said items in proper repair
2. not to dispose of the said items
3. to allow the Bailiff reasonable access in order to examine the said items
and to dispose of them in accordance with any order of the court
Signed this ........... day of .......................... 20......... ...............................................
Person in Possession
Endorsement by bailiff where the person in possession refuses to sign the undertaking:
I, ......................................... invited the person in possession, .....................................,
to sign the above undertaking and he refused.
……...........................................
Bailiff
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FORM 2
(SECTION 10)
OATH TO BE TAKEN BY BAILIFF
I, ........................................................., will carefully perform all the functions of my
office faithfully, honestly, diligently, impartially, without fear or favour, or wilful
delay, according to the best of my knowledge and abilities.
...........................................
Bailiff
Taken this .................day of .................................20..............
Before me at ..........................................................
...........................................
Magistrate
Form 3
(Section 11)
CERTIFICATE OF SERVICE
Case No……... Between: .........................................................................-Plaintiff
And: .................................................................................-Defendants
I ..............................................................do hereby certify that at ......................am/pm
on the ............. day of .......................................... 20 ............ at........................................
I did serve
Whose identity I knew because
Signature:...........................................
Date:...................................
Documents served:
Passed by the Legislative Assembly this 18 day of July, 2000.
